Cost Efficient Dispute Resolution

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Mengiste v Endowment Fund for the Rehabilitation of Tigray

[2013] EWHC 599 (Ch)

Do not keep up with the Jones’ - expert mauled and Solicitor attacked...

Introduction

This is an interesting case for several reasons. First, it represents a comparatively unusual example of a forum conveniens argument about whether a trial should take place in England or in Ethiopa where all the facts were disputed. Normally these applications are decided in a matter of hours, on paper and without live evidence. Not so here. That raises the second issue; expert evidence, in this case on Ethopian law.

Under English law, the proper interpretation of foreign law is a matter of fact, and thus dealt with by way of expert evidence. But there are significant dangers. First, finding an expert in the relevant foreign law can be very difficult, particularly if the law in question is of a far-flung, exotic jurisdiction. The quality, experience and qualifications of the available experts sometimes seems to vary widely. Perhaps more importantly, even if the judge is not on his “home turf” with the foreign law in question, he nevertheless naturally feels pretty comfortable navigating his way around, and interpreting case law reports and statutory rules. Any diffidence that a judge might naturally feel towards an expert tends to disappear if the expert is dealing with questions of law, even if that law is foreign.

The Issues

The facts of the case are not directly relevant to TEDR readers. What is important is the way that the judge’s views on the Claimant’s expert, Mr Jones (a) demonstrates some of the traps that experts can easily fall into and (b) just as importantly, demonstrates how the legal team can unwittingly throw an expert to the wolves by lack of preparation, and how important it is for experts to ask for help.

The judge’s comments on Mr Jones largely speak for themselves:

“The problem with Mr Jones was that he was an inexperienced expert witness. He had never given evidence before in any jurisdiction. That was known to the Claimants' lawyers. Despite that no attempts were made to assist him in the giving of evidence as an expert in that regard.”

That was of course primarily the fault of the lawyers, who should have prepared him better. But it is also at least partly Mr Jones’ own fault. It is important that an expert who feels he is out of his depth (or even one who ought to realise he’s out of his depth) to ask for guidance or assistance (e.g. on issues of procedure, or presentation of a report). That does not compromise an expert’s independence; the expert’s first duty throughout is to assist the court. All it means is that if he is not sure how he can best do that, he should ask.

“It is plain that he did not understand his duties as an expert to the Court and as will be seen in my detailed analysis in the confidential judgment he repeatedly strayed into the argumentative. Further he made strongly worded criticisms which were simply not sustainable on the thought processes in his report and this was cruelly exposed by Mr Spink QC in his thorough and comprehensive destruction of him as an expert witness.”

Ouch!

A couple of points obviously arise here: First and most obviously, Mr Jones needed to understand his duty to the Court before he could stand a realistic chance of getting anything else right. His legal team should have drilled this into him from the start, and if they didn’t, and as a result he was not sure as to what his role was he should have asked for some help – see above;

Mr Jones was argumentative. This demonstrates how easily it is to slip from a robust defence of a theory of the case into advocacy. It comes from a lack of preparation, a lack of experience, and/or a failure to understand the nature of expert evidence. Argumentative witnesses are rarely, if ever convincing;

Lastly, Mr Jones seems to have “led with his chin” by peppering his written report with express criticisms of the other side. This is a dangerous tactic for an expert. First, even if the criticisms are justified, this approach can easily look like advocacy, rather than expert analysis, which will deprive the report of much of its persuasive force. Secondly, the position is obviously even worse if the criticisms cannot be sustained. As the judge remarked, it gave opposing counsel the material to work Mr Jones’ “comprehensive destruction.”

The judge went on to say this:

“… Mr Jones simply did not understand his role as an expert witness … he did not understand the consequences that might flow personally to him if he gave evidence which I found to be reckless or negligent. The reason for this was once again he had not properly been assisted by the Claimants' lawyers in respect of his evidence … Mr Jones was blissfully unaware of the potential consequences … Mr Jones was labouring under difficulties which were caused by his lack of understanding of his duties and the consequences of a finding that he broke his duties. The fault for this lies entirely with the Claimants' lawyers … Mr Jones did not understand how he should give his evidence and the consequences if he failed to give his evidence in a proper way.”

This is a clear allusion to the recent loss of expert witness immunity in Jones v Kaney. Expect more of this kind of thing to feature in judgments as time goes on. Note again that the judge is very clear in saying that the fault for this lay primarily with the legal team, who (as the judge said elsewhere) appear to have thrown Mr Jones to the wolves, so little preparation did they give him.

“The difficulty was that Mr Jones clearly had something [of] worth to say. He was honest in his evidence, but his answers were coloured by his clear desire to argue the case on behalf of the Claimants and his lack of training as an expert. The exercise of stripping away the irrelevancies in his reports to find something of worth was very time consuming … I do not believe he was negligent or reckless; it was simply that his evidence was not good enough.

Conclusion

This case emphasises the importance that judges place on clear, well written reports, that only go directly to the issues, and to experts who understand their role and how to give evidence when in the box. The key to giving both good written and good oral evidence is preparation; to understand the case, work out what is essential and what is not, and to give focused, fair and independent answers to those key questions. Mr Jones did not have the training or the experience to do that. It appears to have cost his clients (and nearly cost him personally) very dearly indeed.